By Mike Schnitzel
Kevin Chesney, formerly a custodian at Robert W. Carbonaro School, is suing the district for $26 million in damages. "My client was terminated when the district knew him to be disabled," said Ruth M. Pollack, Chesney's attorney. "That is in violation of New York State law and Title VII of the federal civil rights code."
The injury
Chesney was clearing a gymnasium after an event at Carbonaro on May 17, 2004, when the injury occurred. "I was pushing a dolly loaded with banquet tables underneath the stage when I suffered an injury to my back and left leg," said Chesney.
According to a New York State Workers' Compensation Board decision filed on June 27, 2005, after reviewing several medical reports provided by Chesney's attending physicians, the board felt it was provided with sufficient evidence to support Chesney's claim of suffering the injuries while working at the school, and that he "provided timely notice of these injuries," which were determined to be related to his job at Carbonaro.
The district takes issue
with a second job
Chesney continued to work at Carbonaro until June 10, 2004, when, he said, the pain became too great for him to continue in his job, which required physical labor. Chesney contends that his problems began when an employee of District 24 observed him driving a cab for Valley Stream Taxi on June 12.
"I continued to work my second job, which the school district knew I had, because I had no more sick days and no income at the time," said Chesney. He continued to work for the taxi company until Sept. 9 of that year, when the difficulty he had with sitting for an extended period of time forced him to leave.
Chesney said that he was observed driving the cab on June 12, and soon afterward he received a letter advising him to meet with District 24 Superintendent Dr. Edward Fale.
According to Chesney, when he met with Fale the following day, he was told by the superintendent that he was committing insurance fraud and theft of services because he continued to work at Valley Stream Taxi while trying to collect compensation benefits from the district. Chesney said that Fale offered him the option of resigning from the district, in which case Fale would allow him to pursue his compensation case. Chesney said he refused to do so, and informed Fale that he was contacting an attorney.
On June 30, 2004, Chesney received a certified letter at his home, informing him that he had been terminated by the school district.
In a phone interview with the Herald last week, Fale said that the matter is open litigation, and that he could not comment on the advice of counsel.
The fallout
Pollack said that Chesney's concurrent employment with Valley Stream Taxi was within the law, and Judge Eugene Goldfarb agreed with that conclusion during a worker's compensation board hearing. Goldfarb declared Chesney to be "70 percent disabled" after consultation with physicians.
Chesney said that his ongoing legal battle prevented him from having surgery his doctors deemed necessary and appropriate, and as a result of the delay of his compensation benefits, his disability has now become permanent, according to his doctors.
"All we wanted was for Kevin to be able to have surgery and go back to work," said Chesney's wife, Lorraine, who is a plaintiff in the lawsuit. Since Chesney's legal battles began, he said, he has had to apply for Social Services and rely on the generosity of friends and family to make ends meet.
"He was happy and proud to work in a school district where we are friends with so many people," said Chesney's brother Michael. "[Kevin and all his siblings] attended District 24 schools, and he could have been an extra set of eyes and ears to watch out for children at Carbonaro. Unfortunately, there haven't been any efforts on the part of the district to reach a fair agreement."
The district responds
District 24 attorney Steven Landis, of Shebitz, Berman & Cohen in Manhattan, said that Chesney's claim lacks a legal basis. "The district believes that it acted appropriately and lawfully when it took action on this matter," said Landis.
Landis said that in order to collect benefits under the Family Medical Leave Act, a person must be employed for a year. Chesney's full-time employment with the district began in October 2003 and continued until he was terminated in June 2004, a total of eight months. Prior to that, Chesney spent a few months there as a part-time worker.
Landis said that the district has requested that the court immediately dismiss Chesney's lawsuit. "The appropriate papers have been filed with the court, and the district is cautiously optimistic that the court will grant its request," said Landis.
Where the case stands
The case is now in the pre-trial stage, and the process of discovery, where both sides exchange documents and begin deposing witnesses, is set to begin shortly. Pollack said that she expects to move into the discovery phase within the next two months.
Landis said that the district does not want discovery to move forward, because "taxpayer money is being wasted if there is no basis for the legal claim."
Comments about this story? MSchnitzel@liherald.com or (516)569-4000 ext. 265.
